In most courts a child cannot bring or defend a case without an adult standing in. The District Courts Act takes a different approach, deliberately, so that the Court is open to the young people who are among its most frequent users.
The rule
(1) A person under the age of 21 years may sue in a Court in all respects as if he were of full age.
(2) A person of or over the age of 16 years may be sued in a Court in all respects as if he were of full age.
(3) Notwithstanding Subsections (1) and (2), where it is necessary or desirable in the interests of justice to do so, a Court before which a person under the age of 21 years sues or is sued may appoint or require the appointment of a next friend or guardian ad litem of that person.
The asymmetry is intended. Anyone under 21, which includes children well below the age of majority, may bring a claim in his or her own name. Only a person who has reached 16 may be sued in his or her own name. A claim against a child under 16 must be brought in some other way, ordinarily against the child through a guardian, or in the National Court under Order 5 of the National Court Rules.
Why the rule exists
Without a statutory provision to the contrary, a person under a legal disability has no capacity to bring a claim. Section 39 eliminates this restriction in the case of infants and removes the requirement that a person under 21 sues or is sued through a next friend or guardian ad litem in every case. What it leaves is a discretion, and the Manual suggests the factors that should guide it: the age of the young person; his or her mental maturity, education and language; the complexity of the litigation; and the importance of the case and the effect its outcome could have on the young person.
A 19-year-old suing an employer for unpaid wages will usually be left to conduct the case alone. A 12-year-old claiming compensation for an injury, where the defendant is represented and the sum is near the Court’s limit, is a case in which a magistrate should think about section 39(3).
Next friend and guardian ad litem
| Next friend | Guardian ad litem | |
|---|---|---|
| Acts for | A young person who is suing | A young person who is being sued |
| Role | Conducts the claim on the young person’s behalf and is answerable for costs | Conducts the defence on the young person’s behalf |
| Who | Usually a parent or close relative with no interest adverse to the young person | The same |
| Appointed | By the Court under s 39(3), or required by the Court to be appointed | The same |
The Act does not prescribe a form or a procedure for the appointment. Regulation 46 allows the Court to borrow from National Court practice, where Order 5 Division 3 of the National Court Rules 1983 deals with persons under disability, and the appointment is ordinarily recorded in the Court’s order and the Register of Decisions.
Time limits
A young person who does not sue promptly is not shut out. Sections 21 and 22 of the Frauds and Limitations Act 1988 extend the limitation period where the plaintiff was under a disability when the cause of action accrued, so that time does not begin to run until the disability ends. The Magistrates’ Manual notes that this most often applies to claims by persons who were infants when injured. It does not prevent the young person from suing sooner; it preserves the right until adulthood.
Money recovered by a young person
The Act is silent about what happens to money recovered by a child. Regulation 17 requires money paid into court to be paid out on demand to the party entitled, and regulation 18 requires the recipient to sign the Suitors’ Cash Book. Where a next friend has been appointed, the Court can and should direct how the money is to be held or applied for the child’s benefit, as the National Court does in comparable cases, and a magistrate may make that a condition of the order under section 22.
Claims arising from a young person’s contracts
Section 39 deals with capacity to litigate, not with the underlying rights. Whether a contract made by a minor is enforceable against him is a question of substantive law, and a defendant relying on infancy as a defence must give notice of it. Section 153 lists infancy among the special defences that cannot be raised without written notice to the complainant a reasonable time before the hearing, and regulation 26 requires the notice to state, so far as the defendant can, the place and date of birth. See the special defences.
A different regime for criminal cases
None of this applies to a young person charged with an offence. Criminal proceedings against a person under 18 are governed by the Juvenile Justice Act 2014, which gives the Juvenile Court exclusive jurisdiction where one exists and requires a parent to attend. See can the District Court try a child. Family matters concerning children, such as maintenance, custody and protection, are dealt with by the Family Court under the Lukautim Pikinini Act 2015; see the Family Court.
The District Courts Act and Regulation are not on PacLII; both are on vLex (Act, Regulation).
Before relying on anything here, read the current text of the District Courts Act (Chapter 40) and check for later amendments. The Act is not on PacLII; the figures and time limits quoted in this series come from the consolidation to No 8 of 2000, and the District Courts (Amendment) Act 2009 changes some of them once it is brought into operation. If a decision matters to you, get advice — start with the Office of the Public Solicitor, or find a firm in the law firms directory.